With latest ruling on Elian's case, options narrow for boy's US kin

WASHINGTON
— The Miami relatives of Elian Gonzalez have lost a major battle in their fight to keep the six-year-old Cuban shipwreck victim in the United States. They haven't yet lost the war - but their legal options for preventing Elian's return to Cuba are dwindling.

Their setback came on March 21, when a federal judge declined to block the US government's efforts to send Elian back to his father, Juan Gonzalez. US District Court Judge K. Michael Moore ruled that Attorney General Janet Reno was entirely within her rights in determining whether or not to grant Elian asylum.

Furthermore, Judge Moore implicitly criticized Elian's great uncle, Lazaro Gonzalez, for bringing the case into a federal courtroom in the first place.

"Even this well-intended litigation has the capacity to bring about unintended harm," wrote Judge Moore in his decision. "In light of ... the reality that each passing day is another day lost between Juan Gonzalez and his son, the court can only hope that those on each side of this litigation place the interests of Elian Gonzalez above all others."

The point of the lawsuit filed by Elian's Miami relatives was what legal forum was proper to determine the young boy's fate.

They did not directly argue that Elian should be granted political asylum. Rather, they said that the Immigration and Naturalization Service (INS) should grant him a full immigration hearing.

To do otherwise, their lawyer argued, would be to deny Elian his rights. After all, any alien in the US can apply for political asylum. US government lawyers argued in return that Elian is too young to ask for a hearing himself - and that only a parent or guardian can file such an application for him. His Miami relatives are not legal guardians, and his father wants him to return to Cuba.

Furthermore, the INS has already investigated the case and decided there is no basis for asylum, the government contended. Their investigation was reviewed by Ms. Reno, who backed their conclusion that the boy should be returned to his homeland.

"The attorney general acted within her discretion in determining, as a matter of law, both that [Elian's] father is solely authorized to act on behalf of his son ... and that [Elian's] applications for asylum need not be considered by the INS without the father's authorization," concluded Judge Moore.

Elian's future has been a matter of fierce international debate since he was found clinging to an inner tube off the coast of Florida last November 25. His mother and 10 others were lost at sea when their boat sank during an attempt to flee Cuba for the United States.

Rather then send him back right away, US officials released Elian to relatives who showed up at the hospital where he was taken. The boy had been traumatized by his time at sea, they thought, and needed some time to absorb what had happened.

Since then, the battle over his future has divided his relatives and provided Fidel Castro with an issue to rally protests in Cuba. Lawyers for the Miami relatives have said they would appeal a loss in this case. The next step would likely be a petition for an emergency stay from the 11th US Circuit Court of Appeals in Atlanta. If a stay is granted, a three-judge panel of the appeals court would then review the case.